Mohd. Shah vs State of U.P.

S.C. Nigam, J.—This appeal under Section 374 Cr. P.C. has been filed by the accused against the judgment and order dated 2591995 whereby he was convicted under Sections 302 and 459 of the Penal Code and was sentenced to undergo imprisonment for life and rigorous imprisonment for a period of one year respectively thereunder. Both the sentences were ordered to run concurrently.

The facts leading to this appeal are as under :

P.W. 1 Sugara, wife of Ikram, and daughter of Smt. Jaitoon, is informant. The informant is daughter of Nanhey Miyan, who married twice. The appellant and P.W. 2 Smt. Sabbo were born out of the first wedlock. After death of first wife, Nanhey Miyan married with Smt. Jaitoon who reached Sasural alongwith informant. Smt. Jaitoon gave birth to three sons, namely Shamshad Ali, Irshad Ali and Sajjad Ali. Two daughters, namely Nanhi and Parveen Jahan were also born. The informant''s stepbrother Mohammad Shah, the appellant wanted to grab the entire properties of Nanhey Miyan and with this end in view he got prepared a fabricated Will in collusion with Banney, son of Badloo and Shaukin Shah, son of Maqbool Shah. Smt. Jaitoon filed a suit and challenged the Will and got success. The names of all brothers were mutated in the landed property of Nanhey Miyan. This action of Smt. Jaitoon was not relished by the appellant and he threatened her and his stepbrothers also to teach a lesson. The appellant lived in Rampur. He used to visit his house offandon.

On 2111989 at about 6.30 p.m. Smt. Jaitoon was preparing food on a traditional Chulha and her sons and daughters were sitting there and were warming themselves. At about 6.30 p.m., the appellant arrived there and locked one room of the house. He thereafter stood up near his stepmother (Smt. Jaitoon) and shot her dead by firing a shot on the left shoulder. He reloaded his pistol, caught hold of his brother Irshad Ali and shot him dead. An alarm was raised by the informant and others, who tried to apprehend Mohammad Shah. He caught hands of his brother Shamshad Ali who bit with his teeth on his forearm. The appellant ran away on a bicycle. The incident was witnessed by Smt. Sugara and others, who were present there. The villagers Islam Ali, Anwar, Rais and others saw him running away.

Smt. Sugara got a report of the incident prepared by P.W. 6 Maqsood Ahmad, affixed her thumbimpression and sent her report to the Police station through P.W. 5 Islam Ali and on the basis of written report, H. M. Bansidhar Sharma registered a case at crime No. 17 on the same night at 10.30 p.m. An entry regarding registration of the case was made in the G. D. at serial No. 35.

After registration of the case at Police station, P.W. 10 C.P. Singh Tewar took up investigation. He reached the place of occurrence and saw the deadbodies of Smt. Jaitoon and Irshad on the spot. On account of darkness in the night, he prepared inquest reports of both the deceased (Smt. Jaitoon and Irshad) in the morning on 2211989. He interrogated Km. Sugara, Km. Sabbo, Shamshad, Nanhi and Parveen Jahan on the same day and recorded their statements. He further interrogated Sajjad Ali, Rais, Anwar and Maqsood Ahmad. After inspection of scene of incident, he collected blood stained earth and plain earth in two containers and prepared Fard and sample of seal. A siteplan was also prepared. On 2211989 itself, the then S. O. C. L. Sharma took up the investigation and after perusing the case diary, inquest reports, etc., searched the accused who could not be arrested. On 2311989 he received postmortem reports. On 2221989 blood stained earth, clothes, etc., were sent to Agra for examination through constable Mahendra Singh. P.W. 4 Riyasat Ali produced an earthen lamp to the I.O. who prepared a Fard. After completing investigation, the I.O. submitted chargesheet against the appellant.

After committal of the case, learned Sessions Judge framed charges under Sections 302 and 459 of the Penal Code on 621991. Accused pleaded not guilty and claimed to be tried.

In order to substantiate its allegations, the prosecution examined eleven witnesses in all. They are P.W. 1 Smt. Sugara who is informant and an eyewitness. She proved her written report (ExhibitKa1). P.W. 2 Smt. Sabbo is real sister of the appellant and an eyewitness. P.W. 3 Shamshad is step brother of the appellant and son of deceased. He is also said to be an eyewitness. P.W. 4 Riyasat Ali is brotherinlaw of Smt. Jaitoon and is said to be an eyewitness. P.W. 5 Islam Ali, P.W. 7 Anwar and P.W. 8 Rais Ahmad are the witnesses who saw the appellant running away from the house on a bicycle. P.W. 6 Maqsood Ahmad is scribe of the written report. P.W. 9 Dr. H.C. Narula is Medical Officer of the District Hospital, who conducted postmortem examination on the deadbody of Smt. Jaitoon on 2211989 at 3.00 p.m. According to him, the lady was about 40 years old and death had taken place about one day prior to examination. Rigor mortis was present in both upper and lower limbs and had passed from the head and neck.

Dr. Narula found following antemortem injury :

�Lacerated wound 2 cm x 2 cm chest cavity deep, lacerated margin and inverted, clotted blood present. Blackening, scorching and tattooing present around the wound, 2 cm below the top of left shoulder. The lady had gun shot wound of entry�.

In the opinion of Dr. Narula, the death of the lady was caused due to antemortem injury, which was caused by firearm.

Dr. Narula conducted autopsy on the deadbody of Irshad on the same day at 4.30 p.m. Irshad was a boy aged about four years and had died about one day prior to the examination. Rigor mortis was present in both limbs.

The following antemortem injuries were found:

�Lacerated wound 3 cm x cavity deep on the back of scapular region, 3 cm below right shoulder joint. Margin badly lacerated and is inverted. Blackening, scorching and tattooing all around the wound were there. Clotted blood present. This was wound of entry�.

In the opinion of doctor, the death had taken place on account of shock and haemorrhage resulting from antemortem firearm injuries.

P.W. 10 S.I. C. P. Singh Tewar and P.W. 11 S.I. C. L. Sharma are the first and second I.O. respectively and they proved Police papers, including inquest reports, siteplans, Fard recoveries and chargesheet.

Mohammad Shah in his statement recorded under Section 313 Cr. P.C. totally denied his complicity in the alleged double murders and pleaded that he was falsely implicated due to enmity. The FIR was antetimed and was not lodged by Smt. Sugara. P.W. 5 Islam Ali colluded with the local Police with a view to grab the landed property of the appellant and set up a false case. He examined D.W. 1 Dr. G.K. Jain, Radiologist of the District Hospital, Moradabad, to prove that on 1611989 he had done Xray of the left ankle of the appellant and found fracture of talus bone. Dr. Jain was examined to show that the appellant was unable to move on the fateful day without any support.

After considering the arguments advanced by the learned Counsel for the parties and the entire oral and documentary evidence led by them, learned trial Judge concluded that it was the appellant and none else who committed murder of his step brother and stepmother and he was found guilty and sentenced, as mentioned above.

We have heard Sri R. B. Singh, learned amicus curiae, for the appellant, who is in Jail, and learned A. G. A. for the State. We have gone through the impugned judgment as well as entire record carefully.

Learned amicus curiae for the appellant has assailed the judgment under appeal mainly on the grounds that there was no motive for the appellant to commit murders of his own family members and that no source of right was available to the witnesses to identify the appellant and there were contradictions between the medical evidence and eyewitness account led by the prosecution. Besides it, the FIR was antetimed and was prepared on the dictation of the I.O. next morning and it was antetimed. The witnesses are closely related and interested and the Court below erred in placing reliance on their testimony and appellant deserves acquittal.

On the other hand, learned A.G.A. has submitted that appellant killed his stepmother as well as stepbrother within a few minutes in his own house in the presence of his sisters and brothers. He being member of the family was well known to all witnesses and there was no question of committing error in recognizing him. The witnesses were present near the Chulha and were warming themselves in the month of January. There was no question of falsely implicating the appellant who is real brother of P.W. 2 Smt. Sabbo. The prosecution witnesses are related to the deceased as well as to the appellant also. The evidence led in defence did not help the appellant and he was rightly found guilty.

We have given our anxious consideration to the entire arguments advanced on behalf of the parties. We have thoroughly scanned and scrutinized the entire material on record also and after doing this exercise; we have arrived at the conclusion that there are no valid reasons to take a different view than that taken by the trial Judge. In the instant case, it is admitted between the parties that the appellant and P.W. 2 Smt. Sabbo were born out of the first wife of Nanhey Miyan. The informant is daughter of Smt. Jaitoon and Irshad, who was also killed, is real brother of the informant. So far as testimony of P.W. 1 Sugara is concerned, she fully supported the prosecution story and testified that litigation took place between the deceased and the appellant which ended in favour of Smt. Jaitoon. Thereafter, the appellant threatened her mother and brother to kill them. According to her, P.W. 4 Riyasat Ali, Mausa of the informant, had also come to her house on the fateful day and saw the incident. P.W. 1 Smt. Sugara and P.W. 2 Smt. Sabbo, who is real sister of the appellant, supported the prosecution version wholeheartedly and gave out that it was at about 6.30 a.m. Smt. Jaitoon was preparing a food on a Chulha. They were all alongwith Riyasat Ali sitting there and warming themselves. Mohammad Shah arrived there and after walking for a few minutes locked one of the rooms. He took position in the back of Smt. Jaitoon and placed his pistol on her left shoulder and fired. She expired instantaneously. Thereafter, he killed Irshad Ali and made an attempt to kill Shamshad also. The appellant could not load his pistol for the third time and ran away from the house. An earthen lamp was also burning there near the Chulha. Smt. Sabbo was crossexamined at length but nothing material could be elicited therein to show that she has not spoken the truth. She was crossexamined mainly about the direction and position of the deadbodies. The informant too was crossexamined extensively but she got full success in the test of cross examination. Both P.W. 1 Smt. Sugara and P.W. 2 Smt. Sabbo admitted in their statements that Riyasat Ali was also present there at the time of murders and saw the incident.

P.W. 4 Riyasat Ali admitted that the deceased was sisterin law and he had reached there at about 3.00 p.m. in the afternoon. According to him, the deceased was preparing food on a Chulha and he was also sitting there alongwith children. He added that at about 6.30 p.m. the appellant killed Smt. Jaitoon and Irshad. He too gave out that litigation took place between the appellant and deceased regarding landed property which was decided in favour of the deceased. The appellant was identified in the light of Chulha and an earthen lamp.

P.W. 3 Shamshad, who escaped unhurt from the clutches of the appellant, supported the prosecution story and gave out that appellant had killed his mother Smt. Jaitoon and brother Irshad. He gave out that the appellant tried to kill him also after catching his hands but he saved himself. In crossexamination, Shamshad gave out that written report was prepared by Maqsood Ahmad after arrival of the I.O. in the village. He was, therefore, crossexamined by the State Counsel.

P.W. 5 Islam Ali disclosed that he also arrived at the house of the appellant and saw him running away with a Tamancha in his hands. He took the written report of Smt. Sugara to Police station and lodged a report.

P.W. 6 Maqsood Ahmad admitted that he had prepared a written report (ExhibitKa1) on the dictation of Smt. Sugara. He further admitted in his crossexamination that it would be wrong to say that report was prepared by him on the dictation of the I.O. P.W. 7 Anwar and P.W. 8 did not support the prosecution version and turned hostile.

We are fully aware that witnesses examined by the prosecution are related to the deceased. However, it may be mentioned that they are related to the appellant also. The law is wellsettled on the point that mere close relationship is no ground to discard the testimony of such a witness and what is required is that testimony of such witnesses has to be scrutinized with caution and care. In the instant case, we find that informant Smt. Sugara and P.W. 2 Sabbo, who is real sister of the appellant, P.W. 3 Shamshad, son of the deceased, P.W. 4 Riyasat Ali, brotherinlaw of the deceased and P.W. 5 Islam Ali, uncle of the appellant, fully supported the prosecution version and their testimony could not be shaken despite lengthy crossexamination. Smt. Sugara admitted that one Pir Bukhsh had also threatened to Smt. Jaitoon to teach a lesson and she had given an application to the Superintendent of Police against Pir Bukhsh. However, in view of the clear, direct and reliable evidence of witnesses, we are not prepared to accept this contention that some body else and not the appellant committed the double murders. We see no reason or motive for the witnesses to falsely implicate Mohammad Shah in the case.

It was contended that FIR was antetimed and reliance was placed on the testimony of P.W. 6 Maqsood Ahmad, who disclosed that he had written the report in the morning after arrival of the Police. It will not be out of place to mention here that the witnesses are rustic villagers and the informant is also an illiterate rustic lady of a village and her statement was recorded in the Court after more than two and half years of the incident. She, however, disclosed in clear words that she was interrogated by the I.O. at about 3.00 or 4.00 a.m. It means, the FIR was lodged in the night and the witnesses failed to remember all the details/points correctly after three years.

Learned Counsel for the appellant has drawn our attention to certain discrepancies/omissions in the investigation of the case by the Police and urged that the distance of Police station shown in the FIR and inquest report is different. It is true that there are some discrepancies. Now it is wellsettled that in the case of defective investigation or negligent investigation, the Court has to be circumspect in evaluating evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. Dhanaj Singh alias Shera and Ors. v. State of Punjab; 2004(2) JIC 322 (SC) : 2004 (48) ACC 940, Paras Yadav and Ors. v. State of Bihar, 1999(2) JIC 226 (SC) : 1999 (2) SCC 126 and Amar Singh v. Balwinder Singh and Ors., 2003(1) JIC 805 (SC) : (2003) 2 SCC 518.

So far as evidence led in defence is concerned, we have no hesitation in observing that no such evidence was led that the appellant was physically incapable of moving from one place to another. He fired at his victims from a very close range and both died instantaneously. Dr. S. C. Singhal, Medical Officer of the District Jail, was not examined who could say that at the time of admission in Jail, the appellant was unable to move on account of his plaster.

In view of the foregoing discussion and scrutiny of the evidence on record, we hold that the trial Judge committed no error in appraisal of the evidence led by the parties and he rightly found the appellant guilty for committing murders of his stepbrother Irshad and stepmother Smt. Jaitoon. We, however, find that the appellant is entitled to be acquitted of the charge framed under Section 459 IPC. Admittedly the appellant is step brother of the informant. He had, therefore, every right to go inside his house. Therefore, there was no question of committing lurking house trespass or house breaking by him.

In the result, the appeal partly succeeds. The conviction of the appellant under Section 302 of the Penal Code and sentence of imprisonment for life are upheld. He is, however, acquitted of the charge framed under Section 459 of the Penal Code.

The appellant is in Jail. He is directed to serve out the sentence.

The office is directed to send a copy of this judgment alongwith lower Court record to the Court concerned as well as to C.J.M., Rampur for information and necessary compliance. Compliance report shall be submitted to this Court within eight weeks from the date of receipt of a copy of the judgment.